GENERAL PURCHASE CONDITIONS

Transcription

1 GENERAL PURCHASE CONDITIONS of SPIE Nederland B.V. in Breda as filed with the Court Registry of the Breda District Court on 21 July 2015 under number 19/2015 In case of conflict between the Dutch and English version of these General Purchase Conditions the Dutch version will prevail. Section A: Section B: Section C: Section D: Section E: General stipulations Supplementary Purchase Conditions for the delivery of goods Supplementary Purchase Conditions for the (sub)contracting of work Supplementary Purchase Conditions for hiring personnel Supplementary Purchase Conditions for rental SECTION A: General stipulations Article 1 Scope of Application 1.1 These general purchase conditions are applicable to all requests for an offer made by SPIE Nederland BV (hereinafter the Client ) and to all contracts whereby the Client is the acquirer of goods and/or services and/or works of a tangible nature supplied by a third party (hereinafter the Other Party ) as well as to all (other) orders issued by the Client to the Other Party, in the broadest sense of the word. The aforementioned contracts and orders shall be referred to below as the Contract. The applicability of the general conditions used by the Other Party is and/or all (other) deviations from these General Purchase Conditions are excluded insofar as they are not expressly accepted by the Client in writing upon or after entering into the Contract in question. 1.2 No stipulation of the Contract shall be deemed to create obligations between the Client and third parties other than the Other Party. 1.3 If and insofar as the client of the Client has stipulated requirements that exceed the provisions of these General Purchase Conditions, those further-reaching requirements shall be applicable to the Contract. A copy of those conditions of the Client s client shall be made available at the Other Party s first request. Article 2 Order of precedence In the event of conflicts or uncertainties arising between the provisions of the contract documents, statutory arrangements and/or regulations, the most stringent stipulation to the Other Party shall apply to the extent not expressly provided for in writing otherwise. Article 3 Offer To the extent the offer of the Other Party does not expressly provide for otherwise, the offer of the Other Party shall be deemed to remain in force for at least three months and the offer shall be irrevocable during that period. Article 4 Order The Client shall only be bound to the Other Party if the Client has issued or confirmed an order in writing. The Client shall not under any circumstances be bound to verbal and/or written agreements made between the Other Party and employees of the Client without formal authorisation. In the event of differences between the content of the order of the Client and the content of its confirmation by the Other Party, the content of the order of the Client shall take precedence. The written order (confirmation) of the Client shall be binding towards the Other Party unless the Other Party informs the Client in writing within 5 working days that it does not consider itself bound by the order (confirmation), stating the disputed parts of the order. If the Other Party commences performance without a written order or order confirmation from the Client, such shall be at the Other Party s own expense and risk. Article 5 Performance, delivery and performance periods 5.1 The Performance to be delivered by the Other Party pursuant to a Contract, such in the broadest sense of the word, including, but not limited to the delivery of goods, the rendering of services, the renting out of equipment, the hiring out or lending out of employees and/or the performance of Work of a tangible nature, hereinafter referred to as the Performance, shall be delivered within the period or periods stipulated in the order. These periods are strict deadlines. If the Other Party fails to comply in full, in a timely manner or at all, it will be in default automatically. 5.2 Acceptance of (part of) the delivered Performance shall not result in the Client no longer being able to exercise its rights by virtue of this Contract. 5.3 If the Other Party knows or should be able to foresee that it cannot deliver the agreed Performance in time, it shall be obliged to notify the Client thereof in writing without delay, stating the causes or circumstances and the anticipated time of delivery. A notification of that nature does not release the Other Party from any obligation arising from the Contract. Article 6 Language All correspondence and documents related to the Contract shall be drawn up in the Dutch language. Article 7 Quality and sustainability 7.1 The Other Party guarantees the quality and soundness of the Performance to be delivered and all raw, auxiliary and building materials as well as auxiliary materials and equipment used by it. 7.2 Without prejudice to the requirements set forth elsewhere in these General Purchase Conditions and implied by law, the Performance to be delivered by the Other Party shall meet the following requirements: a. suitability for its designated use; b. sound workmanship; c. statutory (safety and environment) regulations; d. the latest standards that are accepted as standard in the branch of industry, or which are frequently applied; e. the specifications, requirements, standards, drawings, samples given in the Contract f. the absence of any defect as provided for in Article 6:186 et seq. of the Dutch Civil Code; g. the absence of any threat to the environment and human and animal health. 7.3 If required by the Client, the Other Party shall be obliged to give the Client the opportunity to inspect the goods to be delivered, works of a tangible nature and their building materials and auxiliary materials and/or to ascertain the quality and progress of the Work. The Other Party shall cooperate in full with the above and provide an inspector with all such measurement equipment required to conduct the inspections so that they can be carried out with sufficient accuracy, and to provide all necessary specimens, material samples and so on. Not availing itself of the opportunity to carry out inspections shall not affect the rights of the Client by virtue of these conditions. 7.4 The Other Party shall operate a quality assurance system and a safety, health and environment (SHE) system to the satisfaction of the Client. On the request of the Client, the Other Party shall be obliged to give the Client the opportunity to carry out an audit of the functioning of the aforementioned quality and SHE systems and to cooperate with that audit in full. Irrespective of whether the Client avails itself of the right to carry out an audit and irrespective of the result thereof, the Other Party shall remain fully liable for the quality and the soundness of the Performance delivered and to be delivered. 7.5 Before starting to deliver the Performance, the Other Party should ensure that it is aware of the security, conduct and/or safety rules ( the rules ) that apply at the location to which it will be granted access within the context of performing this Contract. The Other Party will deliver the Performance in accordance with the statutory regulations, including, but not limited to, the occupational health and safety legislation (ARBO-voorschriften). The Other Party should comply strictly with the regulations. The Other Party can be held liable for any damage that arises due to a failure to comply with the regulations or a failure to do so fully or properly. 7.6 The Client has the right at all times to require that a certificate of good conduct be submitted beforehand regarding the Other Party s employees or regarding third parties engaged in the Performance of the Contract and/or that said employees and/or third parties undergo security screening in conformity with the rules applying at the Client. The Other Party will cooperate fully with this safety check. The Client has the right on the basis of the findings of said screening to reject the deployment of said employees and/or third parties for the Performance of the Contract, without being required to state reasons, in which case the Other Party is required to immediately replace said employees and/or third parties with other employees and/or third parties having the same education, experience and expertise, without this causing delays or defects in the Performance of the Contract. The costs arising from the provisions in this paragraph are payable by the Other Party. 7.7 At the first request of the Client, the Other Party is obliged to deliver a scope 1 and scope 2 CO2 emission inventory of its company according to ISO The CO2 emission inventory has to be provided with a verification statement from a certifying institution. This statement needs to meet at least the criteria set out in the ISO under Validation and verification statement. Instead of the aforementioned verification statement the Other Party is also allowed to submit a CO2 - awareness Certificate level 3 or higher in accordance with the CO2 Performance Ladder for verification of its CO2 emission. Article 8 Failure All failures to comply with the obligations of the Other Party pursuant to the Contract and/or these General Purchase Conditions shall give the Client the right, without prior written notice of default and or legal authorisation being required: a. to suspend any consideration of any nature whatsoever that is owed to the Other Party; and/or b. to dissolve the Contract in full or in part by means of written notification to that effect; and/or c. to demand that the Performance be delivered within a reasonable period of time to be set by the Client, at the expense of the Other Party, in accordance with the requirements of the Contract; and/or d. to have the Performance carried out by a third party or to carry it out itself and to recover the related costs from the Other Party; and/or e. to reverse the part of the Performance that has already been carried out at the expense and risk of the Other Party; and/or f. to claim compensation of all damage suffered by it and damage suffered by third parties, including the customers of the Client. These rights apply irrespective of the seriousness of the breach and without prejudice to the Client s other rights related to the failure other than in cases in which such would be unacceptable according to the principles of reasonableness and fairness. Article 9 Dissolution The Client has the right to dissolve the Contract in full or in part by means of a written notification to that effect in the event of an attributable failure on the part of the Other Party, if the Other Party dies, is being liquidated, is declared bankrupt, if executory attachment is levied against its assets, suspension of payment is applied for, if the Other Party is placed under guardianship or otherwise loses the right to dispose of its assets or if the Other Party or its subordinates promise or provide any advantage to subordinates or representatives of the Client. Article 10 Penalty In the event the Performance is not delivered within the agreed term at the agreed place, the Other Party shall forfeit to the Client an immediately payable penalty of 1% of the price of the overall Performance in question for each day the failure continues, subject to a minimum of 1,000 and a maximum of 15%, without prejudice to the right of the Client to claim compensation of the actual losses suffered and to be suffered in the future. In the event of delivery being permanently impossible, the penalty shall be immediately due and payable in full. Article 11: Costs All costs, both judicial and extrajudicial, including the costs of legal counsel and costs of internal file handling, which are incurred by the Client in order to exercise its rights in AV-0014/ of 5

2 respect of the Contract, shall be at the expense of the Other Party. Article 12 Prices All prices, including the rates for man-hours, include all costs by any name, such as the costs of packaging, transport, insurance, taxes, levies, etc. There will be no set-off in the event of rises in wages, prices of materials and so on. The prices are fixed and cannot be altered. If no explicit statement is made to the contrary, the prices are exclusive of turnover tax. Article 13 Invoices and payment 13.1 Invoices shall be consistent with the request of the Client to invoice (invoice request) belonging to the Performance delivered. Invoices shall be submitted as a single copy in written or digital form, such to be decided by the Other Party. The invoice shall state at least the invoice request number ( factuurverzoeknummer ), or the assignment number if personnel is made available. Invoices without a specification of the Client invoice request number ( factuurverzoeknummer ) or assignment number will not be accepted and will be returned to the Other Party All invoices from any Other Party that can be considered to be a (sub)contractor or temporary employment agency in respect of a Performance it has delivered to the Client must state or be accompanied by: a. a description of the Work and the place of execution; b. the time period or the time periods in which the Performance is carried out; c. the amount of the wages included in the invoiced amount; d. the statement Omzetbelasting verlegd, (turnover tax reversed) and the amount of the reversed turnover tax if applicable; e. registration, signed by an authorised employee of the Client, listing the persons that have been hired or have carried out Work on a subcontracting or contracting basis and the dates on which and hours during which those persons carried out activities during the time period over or the time periods within which the invoiced Performance was carried out ( man-hour register ) Invoices shall be paid within 60 days of receipt of the invoice and only if: a. all requirements set in these General Purchase Conditions for invoices have been met; b. the Performance on which the invoice is based has been carried out and accepted by the Client; c. all documentation has been received that should be considered to form part of the invoiced performance, such as drawings, quality and guarantee certificates and operating instructions Payment of 40% of the amount stated in the invoice that relates to the execution of the Work or hiring out shall, at the discretion of the Client, take place against proper receipt by the Other Party as follows: a. by transferring that amount to the G account of the Other Party, if the Other Party has entered into a fully valid G account agreement; or b. by direct payment to the body charged with the collection of income tax and/or social insurance premiums. If no (fully documented) division is made in the invoice between the (wage sum of) performances in respect of the execution of the Work or hiring out on the one hand and the performances such as the delivery of goods on the other, the Client shall pay as specified in this clause Payment does constitute a waiver of rights of any kind. In the event the Client rejects the Performance in full or in part within a reasonable period following payment, the Other Party shall reimburse the relevant payments it has received from the Client within two weeks of a written notification to that effect, increased by statutory interest on the amount paid from the date on which it was paid. Article 14 Sequential Liability Act On a weekly basis or as frequently as requested by the Client, the Other Party that can be considered to be a (sub)contractor or Supplier to the Client shall provide written information pertaining to all matters concerning the (administration of) the payment of state taxes and social insurance premiums required pursuant to the law or any government regulation or considered necessary or desirable by the Client. Article 15 Compensation The Client has the right at all times to set off amounts payable to the Client and/or any other group company as provided for in Book 2 of the Dutch Civil Code (hereinafter referred to as: Group Companies ) of the Client for any reason whatsoever from the Other Party or any Group Company of the Other Party against all that which is or shall be payable to the Other Party at any time. The Client shall also be entitled at all times to pay in return for proper receipt any amount that the Client or one of its Group Companies owes at any time to the Other Party or one of the Group Companies of the Other Party, provided that that Group Company deducts that payment from any amount from that which it is owed at any time by the Other Party. Article 16 Indemnification 16.1 The Other Party indemnifies and holds harmless the Client against all third-party claims for compensation of damage resulting from shortcomings in the Performance, the Contract and/or these General Purchase Conditions caused by the Other Party or those assisting it or otherwise The Other Party guarantees that delivery of the Performance to the Client and/or the Client s use of that Performance shall not infringe any industrial property right or other absolute right of third parties, including patent, trademark, copyright and property right and the Other Party shall fully indemnify and hold harmless the Client and its Group companies against all such claims and costs. Article 17. Liability The Other Party is liable for all losses arising from non-compliance, incomplete compliance or late compliance with the Contract and/or these General Purchase Conditions or the failure to comply with any other contractual or non-contractual obligation to the Client, irrespective of whether that loss was caused by the Other Party, its personnel or third parties it has engaged and irrespective of whether that loss was caused to (personnel or property of) the Client or to third parties. Article 18 - Transfer of rights and obligations The rights or obligations under the Contract cannot be transferred to third parties without the Client s written consent. The Other Party is not allowed to assign, pledge or to transfer these rights or obligations to a third party under any title whatsoever without written permission. This provision has effect under property law ( goederenrechtelijke werking ). Article 19 Drawings, models and software All models, drawings, designs, software and (other) resources, such in the broadest sense of the word, that the Client makes available to the Other Party or which are made or developed by the Other Party and/or by the Client in the context of the Contract, as well as goods purchased by the Other Party that can be regarded as being included in the Performance, shall remain or become the property of the Client. Insofar as this document is not sufficient to bring about a transfer of ownership, the Other Party shall be obliged upon the first request of the Client to do everything necessary to bringing about that transfer. The Other Party is not entitled to use or disclose specific knowledge that it has acquired in the context of the Performance without the prior written permission of the Client. Article 20 Force majeure In cases of force majeure, compliance by the relevant parties with the obligations arising from the Contract shall be fully or partially suspended for the duration of the period of force majeure without the parties being obliged to pay each other compensation. The other party shall be notified in writing of the existence of a situation of force majeure, supported by documentary evidence. Force majeure is defined as an event that cannot be attributed to the party in question or be considered at its risk, including but not limited to natural disasters, riots, acts of war, fire and explosions. Staff shortages and inability to meet financial obligations shall not be considered to be force majeure. Article 21 Confidentiality 21.1 The Other Party is required to treat all data and information acquired directly and/or indirectly from the Client (or the Client s client) confidentially and to observe secrecy towards third parties unless the Client has agreed beforehand in writing to a disclosure or communication to a third party. The Other Party will only use said confidential information for the purpose for which the Contract has been entered into This confidentiality does not cover said confidential information that: a. at the time of receipt was publicly known or otherwise belonged to the public domain, in a manner other than as a result of a breach of the Contract; and/or b. after receipt, other than due to the failure or neglect of the Other Party, has become publicly available or has otherwise become part of the public domain; and/or c. was already known to the Other Party at the time it was provided by the Client (or the Client s client); and/or d. is validly received from a third party that had no duty of confidentiality with respect to the data and information; and/or e. is made available at the request of the competent authorities. In the case referred to under marginal letter e., the Other Party will inform the Client immediately of the request for disclosure The Other Party will ensure that employees and/or third parties engaged by it in the Performance of the Contract will comply with the duty of confidentiality laid down in this article and act accordingly The Other Party will keep all information or data provided by or relating to the Client (or the Client s client) at a place that is not accessible to third parties and ensure that these cannot be inspected or obtained by third parties. The Other Party will only keep said confidential information to the extent and for as long as necessary. In the event of (premature) termination of the Contract, the Client can choose to have this confidential information destroyed or returned in a manner to be agreed upon, at its first request. The accompanying costs are payable by the Other Party For each breach or failure to comply on the part of the Other Party with respect to the obligations under this article, the Other Party will, without a notice of default being required, forfeit to the Client a penalty, immediately due and payable, that is not eligible for settlement of 10,000 for each incident and 1,000 for each day the breach continues, without such prejudicing the right of the Client to claim compensation of damage actually incurred by it. Article 22 Statements by the parties All press statements and other forms of publicity and announcements relating to the Contract containing information designated as confidential or issues arising from this information as well as the way in which these statements are made require the prior written approval of the parties. The parties will not withhold from each other this written approval on unreasonable grounds. Article 23 Disputes This Contract and all contracts arising from it shall be governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is excluded. Disputes shall be settled in the first instance by the competent court in the district of Zeeland West-Brabant, location Breda, without prejudice to the right of the Client to have a dispute settled by means of arbitration in accordance with the rules set forth in the charter of the Court of Arbitration for the Metal Trade and Industry, subject to the proviso that in addition to these rules, the arbitrators are not authorised to alter what has been agreed between the parties. SECTION B. Supplementary Purchase Conditions for the delivery of goods Article 24 Risk The goods remain at the expense and risk of the Other Party until the time of delivery. The Other Party undertakes to keep the goods properly insured until that time. The transport and loading and unloading of the goods and the waiting times for loading or unloading are at the Other Party s risk. Article 25 Packaging, transport, delivery 25.1 The Other Party is responsible for ensuring that the goods being delivered are properly packaged. The packaging must be undamaged upon delivery. The packaging must be given the appropriate markings and must be recollected at the Other Party s own expense upon the request of the Client. If a deposit scheme has been agreed, in which case the packaging shall remain the property of the Other Party, the packaging shall be collected by the Other Party on the first request of the Client Delivery shall take place unloaded and carriage paid (building) site(s) as specified in the AV-0014/ of 5

3 order, in the absence of which to the warehouse of the (relevant branch of) the Client. The delivery shall be accompanied by the customary transport documents that the Client requires to take receipt of the products, drawings, quality and guarantee certificates, etc Immediately upon unloading the goods the Other Party shall present a waybill or packing slip for signature by a person authorised for that purpose by the Client. Signing the waybill shall not imply approval of the delivered goods or absolve the Other Party from any guarantee obligation and/or liability pursuant to the Contract entered into between the parties The Client shall not be obliged to inspect and/or approve the quality of the goods as soon as they are delivered, but it will have the right to submit complaints to the Other Party within a reasonable period of time. The exceeding of any (statutory) time limit for complaints or the failure to take any particular action that was possible pursuant to the Contract shall not release the Other Party of any liability. Article 26 Transfer of ownership of the goods The ownership of the goods shall pass to the Client upon the actual delivery of the goods at the delivery address to an authorised employee of the Client. The Other Party guarantees that it is authorised to deliver the goods and that the full and unencumbered ownership is transferred. Article 27 Guarantee 27.1 The Other Party guarantees the absence of any visible or invisible defect in the goods for a period of least 18 months after delivery or, if longer, the longest of the following periods: 12 months after taking the goods into use or the period of the factory guarantee The Client has the right to exercise the rights that it can derive from a failure as soon as it considers that the products do not comply with the provisions of the Contract, irrespective of the time at which the defect is established or could reasonably have been established, provided that this time is within the guarantee period. The Client cannot exercise the aforementioned right if the Other Party demonstrates that the products meet the provisions of the Contract. SECTION C. Supplementary Purchase Conditions for the (sub)contracting of work Article 28 Effect These supplementary conditions are applicable to all Contracts under which the Other Party acts in respect of the Client as a contractor or subcontractor, hereinafter to be referred to as the Subcontractor. The Subcontractor is defined as the party that undertakes, outside of an employment contract, to perform a work of a tangible nature in full or in part (hereinafter referred to as: the Work ) for an agreed price, whether or not on an hourly rate basis, and irrespective of who bears responsibility for the Work. Article 29 Applicability of the conditions of the client of the Client The conditions that are applicable between the Client and its client (hereinafter referred to as the Principal Contract ) shall be applicable mutatis mutandis to the Contracts between the Client and the Subcontractor insofar as it is not apparent from (the context of) those conditions or from the order (confirmation) that a certain condition is exclusively in force between the Client and its client. Article 30 UAVTI The Uniform Administrative Conditions for the Execution of Works and Technical Installation Works 2012 (UAV 2012) are applicable mutatis mutandis insofar as the Contract (including these General Purchase Conditions) includes no deviations. Article 31 Order of precedence Without prejudice to the provisions of article 2, the following order of precedence shall be applied in the event of conflicts arising between the provisions in documents that form an integral part of the Contract: 1. the order or order confirmation issued by the Client; 2. the Principal Contract 3. these General Purchase Conditions 4. the Uniform Administrative Conditions for the Execution of Works and Technical Installation Works 2012 (UAV 2012). This arrangement shall take precedence over the order of precedence arrangement given in 2 of the UAV Article 32 Subcontractor s obligations 32.1 Without prejudice to the other obligations pursuant to these General Purchase Conditions in respect of the Subcontractor, the Subcontractor declares and guarantees to the Client: a. that it will carry out the Work properly, soundly and expertly, making use of sound materials, suitable for the purpose for which they are intended and in accordance with the provisions of the Contract; b. that it will comply exclusively with the orders and instructions given by the Client; c. that it will refrain from giving price estimates or offers to the (ultimate) client of the Client for extensions to or alterations of the Work accepted by the Client; d. it is aware of and shall comply with all conditions, regulations and stipulations that are necessary for the correct execution of the Work, including the laws, regulations, governmental instructions and special conditions of the (ultimate) client of the Client; e. that employees, to the extent applicable and relevant, have obtained the certificates required for the performance of the Work, including, but not limited to, a SCC certificate and that this will be produced at the first request of the Client; f. that before commencing earth works it will familiarise itself with the location of cables, pipes and pipelines and in that context will contact the appropriate bodies in good time and shall also put in place all measures that can prevent damage being caused to cables, pipes and pipelines; g. to follow the procedure as specified in paragraph 2 of this article. In the event of non-compliance with the provisions of marginal letters b. and c. above, the Subcontractor shall forfeit to the Client an immediately payable fine of 10,000 for each violation, without prejudice to the right of the Client to claim compensation of the losses that it has actually suffered and will suffer in the future The procedure: a. The Subcontractor shall inspect the building site, compare it with the contract documents and carefully study those documents, inspect the temporary facilities at the sites and ascertain the conditions under which the Work is to be carried out. b. The Subcontractor shall correctly use and maintain the materials that are issued to it, failing which it will be liable for the damage and costs. c. The Subcontractor shall draw up work reports and, if required by the Client, that shall be done in accordance with a model to be issued by the Client. It shall present weekly completed and signed work reports to the Client for approval. d. The Client can make a written request to its (ultimate) client and/or his authorised representative to give its orders and instructions directly to the Subcontractor. In that case, the Subcontractor shall be obliged to comply with the orders and instructions given by the (ultimate) client of the Client or his authorised representative, provided that the Subcontractor has received a copy of the Client s request to that effect. e. The Subcontractor is not authorised to make use of the employees (temporary workers) that are made available to it other than with the written permission of the Client. f. If the Subcontractor engages another subcontractor to carry out the Work in full or in part, it shall be obliged to stipulate that these General Purchase Conditions are applicable mutatis mutandis to the contract that it enters into with a subcontractor. Article 33 Amendments 33.1 The Client has the right at all times to make amendments to the technical specifications of the Work, such in the broadest sense of the word, if the Client judges that to be necessary for a clarification of the specification of the Work. Notification of such amendments, additions and/or omissions shall be given in written form. They shall be deemed to form an integral part of the Contract and shall not be considered additional work unless the Subcontractor makes a written objection to them within 5 working days of their receipt If, in the opinion of the Subcontractor, the content of the contractual documents insufficiently specifies the execution of the Work, the Subcontractor shall be obliged to request further instructions from the Client in good time, before commencement of the relevant part of the work The Subcontractor shall comply with all the provisions of the contractual documents and their purport and shall immediately inform the Client in writing of any errors found in them and shall not use them for its own benefit and/or to the detriment of the Work. Deviations from the Contract, other than in cases in which immediate action is required in keeping with the principle of good workmanship and the obligation to limit liability, shall not be permitted without the written permission of the Client The Client has the right to increase or reduce the scope of the Work. The Subcontractor shall comply with orders for additional or reduced work (contractual variations). The Client shall be only liable for the payment of additional work if written instructions for that work have been given. Article 34 Payment of additional work The Client shall not pay the Subcontractor for additional work until the Client has received payment for that additional work from the client of the Client. Article 35 Coordination, losses due to delays The Subcontractor shall be required to coordinate its activities with other contractors that are involved in the Work. The Subcontractor shall only be entitled to claim compensation of damage resulting from waiting times or (other) loss of efficiency or postponement of completion or deliveries if and insofar as the Client is compensated for that loss by its client or is granted postponement of completion or delivery, respectively. Article 36 Dissolution The Client has the right to dissolve the Contract that has been concluded if the Principal Contract is terminated or suspended. Article 37 (Auxiliary) materials, equipment, tools, company clothing The Subcontractor shall provide at its own expense all (auxiliary) materials, equipment, tools and company clothing including helmets, safety goggles and ear protectors that are needed for the Performance of the Contract. If the Subcontractor uses (auxiliary) materials, equipment, tools or company clothing of the Client, it shall be obliged to return them in the same condition in which it received them. The Subcontractor shall be liable for all damage caused in any manner to these goods during the time that they have been made available by the Client. The Subcontractor shall arrange at his own expense for the transportation of personnel, goods and work equipment to the location of the Work. Article 38 Storage, waste, environment The Subcontractor is not allowed to store more materials at the Work site than is necessary for the immediate Performance of the Contract. The goods stored by the Subcontractor and/or third parties at the Work site are at the Subcontractor s risk. The Subcontractor shall clear away all waste, surplus materials and substances on a daily basis. If it has been agreed that the Client will provide waste collection containers, the Subcontractor shall deposit the waste, surplus materials and substances in the designated collection containers. Article 39 Communication Direct communication between the Subcontractor and the (ultimate) client of the Client concerning the Client s activities for that (ultimate) client or comparable activities shall only be permitted with the prior approval of the Client. Article 40 Insurance Subcontractors carrying out a Work commit that they will take out public and professional liability insurance, including product liability, from a reputable insurer, which sufficiently covers the risks related to the Work. That policy must have a minimum insured capital of 2,500,000 per occurrence. At the Client s request, the Subcontractor shall submit to the Client a copy of that insurance policy before commencing the Work. If the Client regards the insured amount or the guarantees of the policy to be insufficient, the Subcontractor shall immediately adjust the policy at its own expense in accordance with the directions of the Client. Article 41 Guarantee following completion 41.1 General The Subcontractor guarantees that on completion the Work shall fully meet and continue to comply with the provisions of the Contractor and that it is and will remain fully suitable AV-0014/ of 5

4 for the intended use. All components of the Work shall have the correct dimensions and capacities and be manufactured using the best materials. All defects that occur during the guarantee period shall be rectified by the Subcontractor at his own expense and upon the first request of the Client Guarantee period The guarantee period begins on the day on which the Work is delivered and ends 18 months after the entire project of which the Work forms part has been accepted and put into operation by the Client or the client of the Client. Parts of the Work that are altered, repaired or replaced pursuant to a guarantee obligation of the Subcontractor shall be accepted separately by the Client. The guarantee period for those parts shall be at least 18 months from the date of the acceptance in question. Article 42 Hidden defects The Subcontractor shall be liable for defects in the Work that come to light following expiry of the guarantee period if the Work does not possess the properties that (the client of) the Client is entitled to expect pursuant to the Contract, for a period of at least five years following expiry of the guarantee period. Article 43 Service The Subcontractor guarantees that for a minimum period of ten years following the end of the guarantee period it will carry out maintenance work and repairs and supply parts at reasonable prices if so desired. Article 44 Prescription Contrary to the provisions of Article 7:761, paragraph 1 of the Dutch Civil Code, a claim in connection with a defect in the Work that has been delivered will prescribe after five years have passed since the Client has submitted a complaint in that connection. SECTION D. Supplementary Purchase conditions for hiring personnel Article - 45 General These supplementary conditions are applicable to all contracts whereby the Other Party (hereinafter to be referred to as the Supplier ) makes personnel available (hereinafter also to be referred to as the the Hired-in Worker ) to the Client to carry out Work under the supervision or management of the Client, whilst maintaining the employment relationship between the Hired-in Worker and his employer. Article 46 Own personnel/lending out of personnel The Supplier shall supply the Client exclusively with its own personnel. There must be an employment relationship between these employees and the Supplier. Without the written permission of the Client, the Supplier is not permitted to hire personnel from third parties or to lend out those employees to the Client. Article 47 Documents The Supplier shall submit the following documents to the Client upon the Client s first request and when submitting his invoice at the latest: a. a copy of an extract from the Trade Register of the Chamber of Commerce, not older than 1 year; b. a declaration, not older than three months, issued by the Tax and Customs Administration and by the industrial insurance board, attesting to its payment record as regards the payment of national insurance premiums, income tax and social insurance premiums, for the employees that it has supplied; c. a copy of a fully valid G account agreement; d. a copy of its liability insurance policy. At the Client s request, the Supplier shall provide on a random basis the pay slips and the expense allowances of the employees it has supplied in order to verify the correct cost calculations with due observance of the law and legislation and regulations pertaining to personal data. Article 48 Personal data of Hired-in Workers The Supplier is obliged to provide a statement of the following personal data before supplying Hired-in Workers: the name, initials, address, place of residence, date of birth, place of birth, date of joining the Supplier s company, Citizen Service Number and nationality. The Supplier must also submit to the Client all of the following documents relating to the Hired-in Workers being supplied: a. a recent curriculum vitae showing that the person concerned is qualified to carry out the Work in question; b. a copy of diplomas obtained, SCC certificates, training courses followed and medical examinations; c. a copy of a valid, legally recognised proof of identity; d. a copy of the passport if the person concerned does not have Dutch nationality; e. if the Hired-in Worker comes from a country that is not a member of the European Union, a copy of a residence permit stipulating that the foreign worker concerned is permitted to work in the manner provided for by law. Article 49 Hired-in Worker s obligations The Supplier guarantees that the Hired-in Workers: a. shall at all times be able to identify themselves on the basis of a valid, legally recognised proof of identity; b. are willing and able to carry out the stipulated work; c. give timely notice of any days leave they intend to take, and that this is decided in consultation with the Client; d. report to the representative of the Client at the agreed time and place; e. have sufficient tools that are in a good state of repair upon arrival at the Work site; f. are present at the Work site on time; g. keep to the working hours set by the Client; h. have sound mastery of the instruction language (Dutch, English or German) to the satisfaction of the Client; and i. possess all (other) skills that are needed for the competent, safe and efficient performance of the Work they have been instructed to do. Article 50 Training fees The fees for training courses for Hired-in Workers the Client considers necessary shall be at the expense of the Supplier. If the Client initially accepts the fees of these training courses, the fees shall be reimbursed by the Supplier without delay. Article 51 Absenteeism, early departure 51.1 In the event a Hired-in Worker is not able to carry out the stipulated work, the Supplier shall ensure that the representative of the Client is informed of that in good time before commencement of the work. The Supplier shall then arrange a replacement Hired-in Worker within four hours upon the first request of the Client In the event the Hired-in Worker gives notice of termination during the first five working days, the Client shall not owe compensation for the first 16 hours worked by that Hired-in Worker. Article 52 Overtime Overtime shall only be permitted on the explicit instructions of the Client. In the absence of any agreement to the contrary, the following rates shall apply to overtime: a. If a Hired-in Worker is required to work more than 8 hours a day, the following overtime payment shall be charged over extra hours (percentage over the hourly rate): Monday to Friday, over the first two hours: Saturdays: Sundays and public holidays: b. If, following consultation with and the approval of the Client, Work is to be carried out outside of the usual hours (shifted hours), a shifted working hours payment of 14% will be added to the normal hourly rate. Article 53 Confidentiality The Supplier guarantees that the Hired-in Worker, if required by the Client, shall sign a non-disclosure agreement to be presented by the Client. The Supplier and the Client undertake to treat all data and information confidentially and to protect their secrecy in respect of third parties. That duty of confidentiality extends also to the data concerning the Client s organisation, business operations and developments which come to the attention of the Supplier or his Hired-in Workers pursuant to this Contract. Article 54. Liability The Supplier shall be fully liable for personal injury and/or property damage sustained by the Hired-in Worker made available and shall indemnify and hold harmless the Client against all claims in that regard, of the Hired-in Worker or of third parties, other than in cases of intent or gross negligence on the part of the Client. Article 55 Communication Direct communication between the Supplier and the client of the Client concerning the Client s activities for that client or comparable activities shall only be permitted with the prior approval of the Client. Article 56 Rules of conduct The Supplier guarantees that the Hired-in Worker it has made available shall at all times comply with the rules of conduct applied by the Client and its client. Hired workers must at least observe the following rules of conduct: a. behave in a well-mannered way; b. refrain from consuming and/or having in their possession alcoholic beverages and/or narcotic substances at the Work site and/or in vehicles for the Work and from being under the influence of said substances at the Work site and/or during commuter travel; c. to present themselves in a clean and tidy manner; d. to refrain from wearing offensive attire or badges; e. to wear work clothing/overalls in the house colours of the Client without markings other than the word and/or trademark of the Client; f. to refrain from using sound carriers in an obtrusive manner; g. to adhere to the company rules of the (ultimate) client of the Client. Article 57 Equipment 57.1 All Hired-in Workers shall be in possession of hand tools and approved electrical equipment. The costs of those tools are included in the standard hourly rate. In the event of an inspection revealing that the Hired-in Worker of the Supplier has defective and/or unsafe tools in his possession, the Supplier shall replace them without delay The Supplier shall ensure that all Hired-in Workers working for the Client shall be issued with personal protective equipment that is in a good state of repair. That must at least comprise: sound work clothing, safety helmet, safety gloves, safety shoes, safety goggles and ear protection The costs of replacing or repairing goods provided by the Client to Hired-in Workers as a result of their being lost or being used inexpertly shall be at the Supplier s expense Upon completion of the work, any drawings and goods that have been issued to Hired-in Workers shall be returned to the Client The goods provided by the Client may only be used by the Hired-in Workers when the Work is being carried out. The Supplier shall notify the personnel it has provided of this obligation and guarantee that the Hired-in Workers shall actually comply with these obligations. In the event of a failure to comply has been identified, the Supplier shall forfeit to the Client an immediately payable penalty of EUR 500 for each violation. Article 58 Non-compliance in respect of conduct or quality 58.1 The Client reserves the right to establish whether the Hired-in Worker is fully competent for the Work to be carried out. The hours needed for that purpose shall be at the Client s expense, at the usual rate, if and insofar as the competence of the Hired-in Worker is demonstrated to the satisfaction of the Client If a Hired-in Worker does not meet the job profile of the Client, that person can be denied further access to the Work within one day of commencing his work, without the Client being liable for the payment of any compensation to the Supplier and/or the Hired-in Worker If, during the term of the Contract, a Hired-in Worker made available by the Supplier fails to comply with or meet the set requirements or there are serious comments concerning his or her conduct, the Client shall have the right to remove the Hired-in Worker with immediate effect, without the Client being obliged to pay any compensation of the costs that will be and have already been incurred by the Supplier in that regard, and without AV-0014/ of 5

5 prejudice to the Client s other rights. The Client shall inform the Supplier of this within a reasonable period of time In the cases referred to in paragraphs 2 and 3 of this article the Supplier is required to replace the Hired-in Worker with another Hired-in Worker with the same education, experience and expertise without delay, without this causing delays or defects in the Performance of the Contract. Article 59 Termination 59.1 The Contract ends by operation of law if the Work for which the Hired-in Worker has been made available ends, is suspended or so much earlier as agreed between the parties. The representative of the Supplier shall be informed of this in advance and in a timely manner The Client reserves the right to terminate the Contract (in full or in part) in the event of unforeseen circumstances, observing the following notice periods: a. for a deployment of up to three months: one day b. for a deployment of more than three months: four days c. in the case of force majeure or an attributable failure on the part of the Supplier: with immediate effect. SECTION E. Supplementary Purchase Conditions for rental Article 60 - Insurance All objects leased by the Client must be fully insured on the basis of the shell condition by the lessor and at its expense also for the benefit of the lessee and third parties on the part of the lessee. Insofar as the rented objects are motor vehicles, they must also be comprehensively insured against statutory liability under the Motor Insurance Liability Act (WAM). The maximum deductible for the Client is 1000 for each occurrence. AV-0014/ of 5